Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
The 5th Circuit Court of Appeals just denied an en banc rehearing in the case that overturned a Texas law against the sale of sex toys. That leaves a bit split between circuits: the 5th circuit overturned a Texas law and the 11th Circuit upheld a nearly identical Alabama law. That usually means that the Supreme Court will grant cert and rule in order to clear up the disagreement between the two circuits. But will that happen here? And how would they rule? Eugene Volokh writes:
Today, the Fifth Circuit denied rehearing en banc, over the dissent of seven judges; six of them sharply disagreed with the panel decision on the merits, and all seven noted the circuit split. My sense is that this increases still further the chances that the Supreme Court will decide the split is important and worth addressing. The Justices might still see this as a case that's too unimportant practically (as opposed to symbolically and jurisprudentially) and too undignified-sounding factually to hear. But I think that seven circuit judges' belief that this case is jurisprudentially important enough to merit a written dissent from denial of en banc rehearing will increase the chances that the Court will think it's important enough to justify a place on the docket.
And he cautiously predicts that they'll take the case and uphold such laws:
The vote will be at least 6-3, because even some of the liberals on the Court -- I particularly have in mind Justice Breyer -- and moderate conservative Justice Kennedy will think that the courts' power to recognize unenumerated rights should be saved for rights (e.g., abortion, contraception, sexual intimacy, parental rights, right to refuse medical treatment, right to live with close family members, and the like) that are more important in most of their exercisers' lives. And this is so even though the government's arguments for the practical benefits of the law seem comparatively weak, or as to the supposed immorality of the conduct, largely conclusory. I think the majority on the Court will conclude that such conclusory moral arguments are adequate except when something more important to most people's lives is at stake (since probably no Justice accepts the libertarian constitutionalist notion that a broadranging liberty to do what one pleases so long as it doesn't directly enough hurt others is itself so important that it should be recognized as a constitutional right).
That outcome is both plausible and absolutely appalling. Dale Carpenter is a bit more optimistic about the outcome should the Supreme Court hear the case. He favors two possible outcomes:
(1) Broad fundamental right; Texas law unconstitutional. The Court could clarify that Lawrence was indeed a fundamental-rights case, contra Judge Garza's views in dissent on the Fifth Circuit. It could then hold that the use of sexual devices by adults in the privacy of the home partakes of that fundamental right: broadly defined, perhaps a right to "adult sexual autonomy." The next step would be to address Judge Garza's argument that the Texas law is untroubling because it does not ban private use or possession, but only "commercial promotion." That distinction, the Court could hold, makes no difference in the Court's case law. It's inconceivable under Griswold, for example, that the Court would uphold a total ban on the sale of contraceptives, while striking down the ban on use. In Eisenstadt v. Baird, which Judge Garza did not cite, the Court struck down a ban on the distribution of contraceptives to unmarried people. By analogy, the Court would not uphold a ban on the sale of newspapers, magazines, films, and books that contain material protected by the First Amendment. Having gotten past the commercial aspect of the case, the Court would then hold that the state's asserted interest in morality is insufficient to sustain a law infringing on the exercise of a fundamental right...(3) Rational-basis review; Texas law unconstitutional. The Court could hold either that Lawrence was a rational-basis case, or was a narrow fundamental rights case (see #2). Either way, a ban on commercial promotion of a sexual device need only be rationally related to a legitimate state interest. But does the state of Texas have a legitimate interest in a total ban on commercial promotion of sexual devices? Justice Scalia, whom lower court judges (including Judge Garza) love to cite as the authority on the meaning of Lawrence, argued that the one unequivocal holding of the decision was that all morals legislation was at an end. No longer could a state walk into court to defend a law, say that "morality" was the only reason for the law, and expect to win. If he's right about that, and even if only rational-basis review applies, then the Texas law should be unconstitutional since the state's only defense of the ban on commercial promotion was morality.
That's much more hopeful. Time will tell.
Politics
Comments
The Texas Cucumber Growers Lobby must be behind this, right?
Posted by: Bee | August 11, 2008 10:16 AM
I think it's the Texas Tourism Board, Bee. They don't want to lose their title as the Novelty Vibrating Cake Topper Capital of the World.
Somewhat related side note, a good friend of mine is a sex toy tester. Whenever, the company comes up with a new toy they send it to her to try out and provide feedback. Ed, you sometimes say you've got the best job. I think she may just beat you.
Posted by: Abby Normal | August 11, 2008 10:34 AM
I agree with Carpenter that Griswold pretty clearly covers this case.
/Snark begin
Besides, with a staunch defender of individual liberty and property rights like Scalia on the court, this case can't fail to receive a favorable reception.
/snark end
Posted by: Julian | August 11, 2008 10:40 AM
"(since probably no Justice accepts the libertarian constitutionalist notion that a broadranging liberty to do what one pleases so long as it doesn't directly enough hurt others is itself so important that it should be recognized as a constitutional right)."
Wait, what?
Isn't this exactly the standard they should be applying, regardless of whether they are libertarians, democrats, republicans, red fish, blue fish, one fish, or two fish?
The whole "argument" here seems to be that because the law is so minor, any violations of peoples' rights are similarly minor and can be safely ignored. I can't be reading that right, can I?
Law experts here, commentary please.
Posted by: Jason Failes | August 11, 2008 10:48 AM
A government big enough to take away your dildos is big enough to take away your guns.
Posted by: James Hanley | August 11, 2008 10:58 AM
Jason-
Unfortunately, you are reading it right. One of the worst leftovers from the New Deal era court is a two-tiered (at least) system of varying scrutiny depending on how important the court deems the right and who is affected by it. Thus we have the courts first deciding which "standard of review" or "level of scrutiny" to apply in a given case, the two most common choices being "strict scrutiny" and "rational basis" (there is also "intermediate scrutiny" in a few particular cases). Basically, if the court decides to apply the strict scrutiny test to evaluate the constitutionality of a given law or action, they are almost certain to find the law unconstitutional; if they apply the rational basis test they are almost certain to uphold the law. All of this is based upon the now-infamous footnote four of the Carolene Products ruling of 1938.
One of the ways they decide which test to apply is by deciding whether the asserted right being violated is a "fundamental" right or a "mere liberty interest." What's the difference? Good question. And good luck getting a coherent answer out of the Supreme Court. At times, the court has ignored its own precedents in this area and not bothered to state a standard of review or distinguish between fundamental rights and mere liberty interests. In Lawrence v Texas, the ruling that struck down state sodomy laws, Justice Kennedy makes no such determination in his majority opinion, at least not formally. But the standard he applies is clearly synonymous with the strict scrutiny test. That was a hopeful sign that things might be changing, but it hasn't really changed anything.
All of this is absurd in my view. There is no such thing as a non-fundamental right. Every case should be handled with strict scrutiny. Every law should be overturned if it violates individual rights.
Posted by: Ed Brayton | August 11, 2008 11:08 AM
For starters, why is this before any court? And, well... that's about it.
Posted by: Fred Watkins | August 11, 2008 11:10 AM
Fred-
Because it is a violation of our rights.
Posted by: Ed Brayton | August 11, 2008 11:15 AM
Ed-
I'm with you on this one. You may have missed the sarcasm of my comment. Think about it that way.
Posted by: Fred Watkins | August 11, 2008 11:23 AM
James Hanley -
Someone should immediately begin manufacturing gun/dildos (dildo/guns?). Shouldn't be too hard (ha ha), the basic shape is the same. Then what would Texas do?Posted by: Taz | August 11, 2008 11:37 AM
Heh. "From my cold, dead hands!" Or... "Happiness really is a warm gun".
Posted by: Citizen Z | August 11, 2008 12:05 PM
"(since probably no Justice accepts the libertarian constitutionalist notion that a broadranging liberty to do what one pleases so long as it doesn't directly enough hurt others is itself so important that it should be recognized as a constitutional right)."
Wait, what?
Yeah, Jason that was pretty much my reaction to that statement.
Ed's comments about the difference the court attributes to "fundamental rights" and "liberty interests" are instructive.
The Supreme Court is the weakest link in our representative democracy. The power concentrated there is dangerous especially when it is embraced by the court.
Posted by: Lance | August 11, 2008 12:18 PM
Good explanation of strict scrutiny vs. rational basis, Ed. I've gleaned the differences through years of reading this blog (and others), but I feel like it's something even the educated public is almost entirely unaware of. Maybe it's just wishful thinking, but I feel like if more people knew that their right to simply live their lives as they please is deemed a "mere liberty interest" and thus unimportant, they would be pretty upset about it.
Posted by: nicole | August 11, 2008 12:24 PM
Too bad we don't still have Molly to argue the case.
http://www.videosift.com/video/The-Dildo-Diaries-featuring-Molly-Ivins
Posted by: TomDunlap | August 11, 2008 12:41 PM
There is a great video by Molly Ivins on You Tube that provides detailed background on the relevant Texas law.
I am afraid to provide a direct link from here at work, but if you search You Tube for Molly Ivins, the appropriate video should be pretty apparent.
Posted by: Tex | August 11, 2008 12:45 PM
In this case, two companies that run four adult shops, believed that the legal prohibition on the sale of dildos (and artificial vaginas, apparently) was beyond the state's constitutionally allowed authority. And the way we resolve such disputes about the reach of government's authority is through the courts.
Posted by: James Hanley | August 11, 2008 12:56 PM
Oh, I really really really hope this goes all the way to the top. The unintended comedy will keep the late night talk show hosts busy for weeks.
Posted by: Iason Ouabache | August 11, 2008 1:13 PM
Jason, Ed: The recent book _The Dirty Dozen: How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom_ by Robert A. Levy and William Mellor is well worth reading. It discusses the Carolene Products "filled milk" case (and many more cases than the twelve mentioned in the title) in a manner suitable for the interested layperson. It's a good complement to Randy Barnett's _Restoring the Lost Constitution_.
Posted by: Jim Lippard | August 11, 2008 1:14 PM
I'm dubious that Griswold resolves this case. Griswold was about contraceptives, which implicates the right of people to choose whether or not to have children. The current case is plausibly distinguished from Griswold in being about pleasure, rather than reproduction, and I would be surprised if the conservatives on the Court didn't so distinguish it.
Keep in mind also that Griswold is the famous "penumbras of emanations" case, in which Justice Douglas wrote:
Conservatives, especially the orginalist/textualist ones like Scalia, despise the case because of this language, and will almost certainly do their best to avoid ever citing it as precedent. Add to that the fact that the Court used Griswold as the precedent for Roe v. Wade, and you have a case that conservatives would willingly suffer water-boarding in order to avoid using.Posted by: James Hanley | August 11, 2008 1:15 PM
That's assuming Volokh knows whereof he speaks here. Anyone more knowledgeable think this is a plausible prediction of the SCOTUS' reaction?
Posted by: MPW | August 11, 2008 1:26 PM
James-
I would modify that slightly. Conservative originalists pretend to despise the notion of penumbral reasoning, but they gleefully engage in it - without calling it that, of course - in other cases. What they despised was the outcome, not the reasoning. In a long list of other cases involving unenumerated rights, they're perfectly fine with penumbral reasoning. Glenn Reynolds (Instapundit) wrote an excellent law review article on the subject in 1992.
Posted by: Ed Brayton | August 11, 2008 1:26 PM
To clarify, in my post above I meant "anymore more knowledgeable than myself..."
Posted by: MPW | August 11, 2008 1:28 PM
Even if this case does go to the SCOTUS, it can't possibly top porno day at the Supreme Court. Back in the late 60s/early 70s they had an obscenity case that required them to watch the porn movie to decide if it was legally obscene. So they had to get together, in their robes I presume, to watch the movie. By that time, Justice Harlan was legally blind so he brought along one of his law clerks. Every few minutes he would ask the clerk what was going on on the screen. The clerk would tell him and he would respond, "You don't say?" Best story ever.
Posted by: Ed Brayton | August 11, 2008 1:29 PM
Indeed. I don't suppose Justices Kennedy and Breyer have much use for vibrators (though one never knows), but I would like to see a state ban something they actually do enjoy using in their free time and see how well that fares. Golf clubs? Coffee? Or are those too popular? How unpopular does something have to become before it's okay to outlaw it-- how about lava lamps? Not many people have those, let's ban them! The Supreme Court won't care.
A person who thinks it's okay to ban vibrators because having them is "not important" is missing the point completely. If we're at the point where we have to justify our ownership of things is "important" in order to avoid having them taken away, the justice system is in a sad, sad state indeed.
Posted by: Gretchen | August 11, 2008 1:32 PM
That story gives me a woody.
Posted by: MPW | August 11, 2008 1:40 PM
Gee, when I saw the title "Dildos at the Supreme Court?" I thought the article was going to be about Scalia and Alito.
Posted by: c-serpent | August 11, 2008 2:39 PM
Posted by: James Hanley | August 11, 2008 2:40 PM
I agree wholeheartedly with Gretchen's comment, with the possible exception of the bit about Justice Kennedy. He's always struck me as the type who likes to get a little freaky behind closed doors.
But lets not dwell on that. These items should be legal because there's no good reason to make them illegal. But in case that's not compelling enough for the immediate goal of striking down the ban in Alabama, I wonder if the well-documented health benefits of having regular orgasms might be useful. The law is limiting access to a health-promoting device without a compelling reason. Surely people have a fundamental right to pursue good health.
Indecently, the vibrator was invented in the late 1800's for doctors as a shortcut for stimulating women to orgasm, a job they'd been performing manually up until then. No wonder so many women dreamed of marrying a doctor!
Posted by: Abby Normal | August 11, 2008 3:39 PM
And did you mean "incidentally" instead of "indecently"? If so, what a wonderful Freudian slip.
Posted by: James Hanley | August 11, 2008 4:03 PM
Abby Normal,
I prefer to take the Ezra Levant approach: "We [own these vibrators] for the intention and purpose of exercising our inalienable rights as free-born [Americans] to [own] whatever the hell [sex toys] we want no matter what the hell you think. I've probably given 200 interviews with people other than the state where I give a very thoughtful and nuanced expression of my intent. But the only thing I have to say to the government about why I [own this vibrator] is because it's my bloody right to do so. And it's my right to do so for reasonable intentions and it's my right to do so for extremely unreasonable purposes. I refuse to concede to you that what my [sexual] thoughts in my mind are or my heart are will determine whether or not an artifact is legal or illegal."
Posted by: Gretchen | August 11, 2008 4:08 PM
James Hanley said:
Why, to cure their hysteria, of course.
Posted by: Gretchen | August 11, 2008 4:11 PM
Gretchen,
Thanks and oh, my, how interesting. The sophomoric side of me is bursting with bad-taste jokes. And then the sympathetic side of me says, but what a great relief the doctor must have been for Victorian women whose Victorian men weren't giving them any satisfaction. And then the analytical side of me asks, what percentage of Victorian women masturbated themselves to orgasm without the need of a doctor?
Thinking about the whole concept is like watching a car accident--it's horrifying, but also so compelling.
Posted by: James Hanley | August 11, 2008 4:27 PM
James,
My understanding is that having one's orgasmic needs (read: "hysteria") dealt with by a doctor lended a sense of legitimacy. Touching yourself for sexual pleasure was sinful, but having a doctor treat a medical need was perfectly acceptable. Being treated as though you're mentally unstable, however, seems quite a high price to pay for simply wanting an orgasm once in a while.
Posted by: Gretchen | August 11, 2008 4:38 PM
Posted by: James Hanley | August 11, 2008 4:48 PM
Wow, I had no idea my subconsious was so prude. I did indeed intend to type "incidentally." I'll do my brest to be more vigilant.
Gretchen, I prefer that as well. In a perfect world nine Supreme Court Justices would instantly agree. But as I am not yet worshiped by legions of adoring followers, it's obviously not a perfect world. So I offer the health angle as a possible alternative argument, if only to get the foot in the door by showing how it is a fundamental rights issue even within the existing system.
Posted by: Abby Normal | August 11, 2008 4:48 PM
James,
I'd be cautious making such jokes, considering how easy it would be to turn them around on yourself!
Posted by: Gretchen | August 11, 2008 4:53 PM
Indeed! But only by those as juvenile as I.
Posted by: James Hanley | August 11, 2008 4:57 PM
James: I recommend to you Mary Roach's most recent book, _Bonk: The Curious Coupling of Science and Sex_.
Posted by: Jim Lippard | August 11, 2008 5:28 PM
Congratulations, Ed, you've written your first post that will be read by at least one person who was looking for judicial slash fiction.
"Justice Kennedy, have you had a chance to look over my legal briefs?" (saxophone music)
Posted by: Alex, FCD | August 11, 2008 9:07 PM
That is a fabulous book, Jim. I finished it just a few weeks ago, and couldn't stop reading passages out loud to my boyfriend as it went. "Jupp, shall we do something?"
Posted by: Gretchen | August 11, 2008 9:25 PM
Sure there is. A right which is a corollary of other rights is by definition not fundamental.
The supposed "right to choose", for example, is not a fundamental right, which is a consequence of the fundamental right to medical privacy.
BTW, I'd love to see this case argued on the inalienable right to "the pursuit of happiness".
Posted by: Pseudonym | August 11, 2008 9:51 PM
The 5th's decision will have an economic effect on the Las Vegas economy. Tourists from Texas will no longer be spending their money on purchases at Las Vegas area adult book stores.
Posted by: a knight | August 11, 2008 11:36 PM
Yes, it's appaling that dildos are illegal. But it's within the powers of a government to make them so, and correct for a court to uphold a law.
Sure, it's a matter of the government legislating "morality", but that's what governments do. Stealing, for instance, is illegal because it is wrong to steal.
It's the job of a democratic government to regulate people's behaviour in accordance with what society thinks is reasonable. A bill of rights is an emergency last-resort stopper on the behaviour of government: you can't expect that every law that you happen to not like will be a rights violation.
Posted by: Paul Murray | August 12, 2008 2:36 AM
Paul Murray - "Sure, it's a matter of the government legislating "morality", but that's what governments do. Stealing, for instance, is illegal because it is wrong to steal." Like WTF!?!?
Stealing vs. personal, natural, basically harmless stress relief!?!?
Asshole under-the-covers perverts or RWA leaders to maintain their personal power over their minions legislate "morality." Governments of free people exist to help people pursue life, liberty, and happiness with protection from impingement and some common good support. Laws exist to ensure transactions between entities in society are fair and proper. Stealing is basically against the law because it is not a fair transaction; environmental damage is not a fair transaction for similar reasons. We establish governments to handle the heavy lifting to help ensure we remain free, somewhat protected from "bullies", and have a fair shot at happiness as we define it for ourselves, and so that our heirs can remain free and achieve their happiness in the future.
To believe in Plato's Noble Lie in the 21st Century is so sad. And anyone who doesn't see that governments or other institutions of power (like the RCC) aren't just using "morality" laws and other class distinctive laws as clubs to maintain their status quo control is a fool or a hopeless RWA sheeple.
Posted by: ConcernedJoe | August 12, 2008 5:52 AM
I would go at it this way (heh):
1) Two subsumes One.
The privacy rights under the Lawrence (gay) and Griswold (contraceptive) cases are not just rights of couples, they are rights of individuals.
If two consenting adults, *as individuals,* have a right of privacy with respect to sex with each other, that right must necessarily subsume (include) the right of privacy for each consenting adult to have sex with him/herself. If laws prohibiting "sodomy" are unconstitutional, then laws prohibiting masturbation must also be unconstitutional.
Definition: sex: genital stimulation to the point of orgasm.
If an individual has the right to stimulate his/her own genitals to the point of orgasm, but s/he is unable to do so purely "by hand" as it were, then use of an "appliance" for this purpose is no different than the use of an electric can-opener by a person with arthritis. (Otherwise we are discriminating according to disability: tell it to the Iraq vet who is partially paralyzed and can't do the deed without an appliance.)
(By the same token, a driver's license is not required to ride a motorized wheelchair, or to ride a bicycle equipped with a battery pack, so long as the road speed of either device does not exceed the speed of an average person propelled solely by muscle power.)
Neither electric can-openers nor sexual vibrators have ever been regulated as prescription medical devices, so clearly there is no basis to begin doing so now. Thus if a person has a right to masturbate, and if a person with insufficient muscular capability has the right to a can-opener, then that person also has the right to a sexual vibrator, without need of a doctor's prescription.
If the item is legal to possess, it must be legal to purchase. If the item is legal to purchase, it must be legal to sell. Case closed.
2) Fruits, Vegetables, and the First Amendment:
The case I would *love* to see brought, goes like this: An "adult fruit & vegetable stand" opens, and sells items such as carrots, cucumbers, and melons, WITH pamphlets describing exactly how to use these items for masturbation.
When brought to trial, they make a First Amendment case, that the only distinguishing characteristic of their otherwise-purely-legal fruits & veggies, is the pamphlet describing how to use them.
Note here that the carrot, cucumber, melon, or whatever, in and of itself is clearly legal.
Note also that the pamphlet itself, describing how to whack off with fruits & veggies, is not sufficiently explicit as to qualify under any pornography statute. Even the drawings depicting various usages, are bland line-drawings that are hardly explicit enough to qualify as porn.
Thus the pamphlet is protected speech, and the sale of that pamphlet is protected activity as a result.
What the prosecutor has to argue is that the *combination* of a legal item such as a cucumber, and protected speech, *taken together* constitute a violation of law. In essence this is a "thoughtcrime" case: what makes the act illegal is the thoughts a person has while selling the melon or whatever.
Woo-hoo, how I'd love to see them just try that one.
Posted by: g347 | August 12, 2008 8:54 AM
Thank you, Ed and everyone (except Paul Murray). That was very informative, and some of it quite funny.
I'm Canadian, so obviously things are a touch different up here, but our unofficial national sport is watching American politics. Thanks for clearing up the issue, or at least bringing into focus a very muddy array of legislation.
Posted by: Jason Failes | August 12, 2008 9:23 AM
It's the job of a democratic government to regulate people's behaviour in accordance with what society thinks is reasonable.
No, it isn't.
It's the job of a democratic government to regulate people's behavior in accordance with how that behavior endangers or otherwise limits the freedoms and rights of other citizens.
If I want to hop on one foot in the privacy of my own home, I should be able to do so regardless of whether or not that segment of contemporary society which I happen to live in thinks is reasonable or not. We live in a constitutional republic, not a pure democracy, and my rights and freedoms are not hostage to the whims of the current majority.
Posted by: Mike A | August 12, 2008 6:52 PM
"If the item is legal to possess, it must be legal to purchase. If the item is legal to purchase, it must be legal to sell. Case closed."
BAH! Lies! For instance: It is legal to posses a baby, but it is illegal to purchase a baby, and illegal to sell one.
It is legal to have as much free sex as you want, but illegal to sell it.
It is legal to possess a transplanted organ, but illegal to purchase or sell an organ for transplant.
It is fairly legal to purchase stolen property provided that you are unaware that it was stolen, however, it is less legal to sell stolen property.
It is quite clear to any rational person that possession of an item may be entirely without moral obstacle, but that significant moral obstacles may be presented by the transfer of ownership of possessions.
Posted by: Bob Boberton | August 13, 2008 5:52 PM
Me: "Sure, it's a matter of the government legislating "morality", but that's what governments do. Stealing, for instance, is illegal because it is wrong to steal."
Concerned Joe: Like WTF!?!? Stealing vs. personal, natural, basically harmless stress relief!?!?
Sure! I totally agree that sex toys should be ok, and stealing not. But the answer to the meta-question: "whose job is it to decide that?" is the same: a democratically elected government, informed by it's citizenry (via the right of free speech), limited by some absolute constraints on its powers. These constraints are framed as "rights", and I don't think that the right to get off can be sensibly included in them.
Posted by: Paul Murray | August 14, 2008 2:33 AM
Just so. A right to sexual gratification would imply that the government would have to ensure you get 'serviced', and would be used as a justification for rape.
No, the right in question here is one of bodily autonomy, which includes sexual self-determination, and is quite fundamental. It underpins everything from rape laws to medical consent.
Posted by: DaveL | August 14, 2008 7:39 AM
The controversy of dildo was always on the go nowadays. I guess this will never stops until nobody is selling sex toys. But, I'm not favoring for that matter.
Posted by: Sec Toy Addict | September 4, 2008 6:45 AM
well, this is not an ordinary issue for me, reading or hearing to the news stories about crimes, which dildos are involved.
Posted by: Sex Toy Fanatic | October 15, 2008 4:57 AM